NEW ORLEANS – John Blevins, a communications law professor at Loyola University New Orleans College of Law who previously worked at a Washington, D.C. firm in its Federal Communication Commission practice group, has an easy-to-understand analogy for the end of net neutrality law:
“It would be as if Ford owned the highway system, and they might say, ‘I don’t want Nissans driving on my road.”
In December 2017, the Federal Communications Commission (FCC) lifted rules that prohibited internet providers from blocking and/or slowing down certain websites or accepting payment for providing faster service.
Under the new rule, all internet providers—including giants such as Cox Communications, Verizon Wireless, Comcast and others—are free to prioritize internet traffic and control the speed at which some pages load for customers.
“Under these new rules, it is not a violation to block Netflix or slow Netflix down,” Blevins said. He adds that this would apply to mobile use as well. “Providers could say, ‘If you use a particular service, it counts against your wireless cap and if you use another service, it won’t count against your cap.'”
Blevins adds: “That’s a big deal on wireless side. It is sort of breathtaking how completely and totally the FCC has abandoned oversight of this field. It’s good news for communication lawyers."
Net Neutrality: A History
Internet rules were put in place as an extension of telephone communications rules, Blevins said.
“When you pick up the (landline) phone, you can call whoever you want—that’s what ‘common carrier’ means. You can’t discriminate between users or among uses,” he said.
It’s a rule that made communications a fair playing field, where someone in New Orleans wouldn’t be charged more to call Uptown and less to call Lakeview.
“When you plug in your computer to an outlet, the plug doesn’t say, ‘Is this an Apple device? If so, pay more,’” Blevins said.
Blevins said the net neutrality issue has been ongoing since the middle of the second Bush administration, around 2005.
Proponents of lifting the rules state that the FCC had put in too many burdensome rules that affect small internet providers.
Comments from the Wireless Internet Service Providers Association to the FCC state the rules are “an imposition of heavy-handed, ‘one-size-fits-all’ regulations on small broadband providers.”
“We applaud FCC Chairman Ajit Pai for his leadership that has overturned the previous Commission’s decision to enact Title II, the 1930s-era utility telephone regulations,” reads a statement by Cox Communications. “Reestablishing ‘light-touch’ regulation returns a level of certainty for consumer protections and future investment and innovation that spur the growth of the Internet.”
“The good faith argument is they want freedom to innovate and have different services, such as maybe people want video gaming streaming to go faster or to partner with companies like Netflix to provide more content and access,” Blevins said. “Their argument is, ‘We want more freedom to experiment with different models."
However, Blevins said that net neutrality evens the playing field in the internet space.
“Net neutrality is like an Equal Protection Law—like what the constitution says about not treating people differently for different reasons. In this case, you can’t treat internet traffic differently based on either source application or content. In theory, you could slow down all traffic, but you can’t single out Netflix.”
Under the new rule, providers don't have to abide by certain rules to even the playing field.
Streaming video dilemma
“Cable and internet providers are very aware that people are leaving their services because of streaming video and people cutting their cable service,” Blevins said.
If you were a major cable provider, like Cox, would you charge additional fees to stream Netflix content to customers?
Under the lifted rules, these companies can do that.
“People love Netflix and Hulu; in a world without net neutrality, I seriously doubt Netflix as a streaming option would exist,” Blevins said. “Cox Communications wouldn’t let it exist. They wouldn't block it entirely, but they could start charging Netflix for customers to stream its services. They could essentially tax Netflix, they could make you pay more."
This shakeup is already beginning to take shape. Disney is getting into the streaming game with its deal to buy most of 21st Century Fox. Disney has announced plans to unveil two streaming services: one focused on sports that will begin next year and one focused on entertainment that will become available in 2019.
“Disney could pay cable companies to prioritize their service,” Blevins said. “It would be all about relationships between providers and companies.”
It could also effect new entrepreneurial efforts, including new video streaming services coming online.
“Net neutrality helps people that don’t yet exist, especially if you were starting a YouTube or starting a Netflix. When YouTube started out, it didn’t have to negotiate with every access provider or pay money for people to access it,” he said.
The good news is that Louisiana cable provider Cox Communications states there is no plan to change content for its customers or companies.
At least, not yet.
“We do not block, throttle or otherwise interfere with consumers’ desire to go where they want on the internet,” the Cox Communications statement about the end of net neutrality reads. “Cox has always been committed to providing an open internet experience for our customers, and reversing the classification of internet services does not change our commitment.”
Monopoly effect
According to a Federal Communications Commission report, cable television companies provided Internet access to 43 percent of U.S. households.
Only 37 percent of the population had a choice of two or more providers at speeds of 25 Mbps or greater, making high-speed internet competition nonexistent in many major areas.
“New Orleans is a great example," Blevins said. "Cox is the only game in town for high-speed access. In over half the country, there’s only one internet access provider—you can’t switch. (The provider) can do what it wants. I’m all for free markets, but this is a monopoly service.”
He adds, “If we were talking about cereal, you could say, ‘I don’t like this one, I’ll take one of the other three dozen available. But, if you don’t like the internet provider service (in many markets), there’s nothing you can do about it.”
What’s next
Net neutrality is going to be challenged in court, according to Blevins.
“There will be a legal challenge and I think that if the Democrats win in 2020, it will be switched back, so providers will be on their best behavior over the next couple of years,” Blevins said. “After the FCC announced it was appealing its regulations, several attorney generals in Democratic-leaning states said they will impose theirs own restrictions at the state level. States are saying we can do it ourselves, but the FCC is trying to preempt it in the field.”
Senate Democrats announced this week that they are aiming to force a vote on the issue, making all representatives and senators vote on repealing the new FCC ruling, which would have to get approval from President Donald Trump in order to reverse. The president’s approval, however, is unlikely to happen.
Blevins circles back to the analogy about the highway. “Just because you own a piece of the road, you shouldn’t discriminate on who can drive on it,” he said.
– Jenny Peterson, Associate News Editor, Biz New Orleans
